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MASSACHUSETTS SCH. OF LAW AT ANDOVER, INC. v. ABA

August 16, 1995

MASSACHUSETTS SCHOOL OF LAW AT ANDOVER, INC.
v.
AMERICAN BAR ASSOCIATION, et al.



The opinion of the court was delivered by: J. WILLIAM DITTER, JR.

 DITTER, J.

 AUGUST 16, 1995

 I. INTRODUCTION

 This is an antitrust suit brought by the Massachusetts School of Law seeking treble damages arising from the failure of the American Bar Association to grant the school accreditation. MSL attached to its complaint a report bolstering the school's claims of merit. By an order dated June 27, 1995, I granted ABA's motion to compel Ansel Chaplin, MSL's "consultant on accreditation," to answer questions about, and provide documents related to the preparation of that report. MSL had objected to these discovery requests based on the attorney-client privilege. I concluded, however, that MSL had waived any privilege objection when it attached a copy of the report to its complaint.

 MSL has filed a motion for reconsideration. It argues that my decision is not supported by the facts, not supported by the decisional authority that I relied upon, and "is contrary to basic principles as to waiver of privilege set forth in controlling Third Circuit precedent." The crux of MSL's argument is that the report was not itself privileged (because MSL always intended to make it public) and, therefore, when it relied on the unprivileged report in its complaint, MSL did not waive its privilege as to underlying, protected communications. *fn1" MSL's argument, that communications underlying a document can enjoy greater protection than the document that embodies those communications, rests upon a legal fallacy. MSL cannot protect underlying communications by the simple expedient of saying that it intended to make the report containing those communications public. *fn2"

 II. DISCUSSION

 A. The Underlying Communications Were Never Privileged

 Although disputed by the ABA, I accepted for purposes of my order of June 27, 1995, MSL's assertion that Mr. Chaplin was acting as an attorney when he prepared the report. See Order, June 27, 1995, at n.1. Upon reconsideration, I find that in addition to the fact that MSL would have waived its privilege had one existed, there never was any privilege.

 The attorney-client privilege applies where: (1) the asserted holder of the privilege is or seeks to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, and (b) in connection with this communication is acting as a lawyer ; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing either (i) an opinion of law or (ii) legal services or (iii) assistance in some legal proceeding, and (d) not for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. Rhone-Poulenc Rorer, Inc. v. Home Indem., Co., 32 F.3d 851, 862 (3d Cir. 1994) (emphasis added).

 In this case, the attorney-client privilege never existed for two reasons. First, Mr. Chaplin was not acting as a lawyer when he organized the visiting attorney committee and later drafted its report. Second, the communications underlying the report were not exchanged for the purpose of securing a legal opinion, legal services, or assistance in some legal proceeding.

 1. Mr. Chaplin was not acting as a lawyer

 As Chief Judge Joseph Lord, III, noted, in order for the privilege to apply, the "communication must be made by the client to the attorney acting as an attorney and not, e.g., as a business advisor." Barr Marine Prods. Co., Inc. v. Borg-Warner, 84 F.R.D. 631, 634 (E.D. Pa. 1979). Mr. Chaplin testified that he was retained as MSL's "consultant on accreditation." Chaplin Dep. at 16-17. In numerous correspondence he identified himself as MSL's "consultant on accreditation." Likewise, MSL referred to Chaplin in the minutes from its trustees' meeting not as its lawyer but as its "consultant." He never wrote a single legal opinion letter for MSL. Chaplin Dep. at 33. Moreover, notwithstanding MSL's contention that it employed Mr. Chaplin to guide it through an accreditation scheme "laden with procedure" and resembling a "labyrinth," before working for MSL, Mr. Chaplin had never served on an ABA accreditation inspection team or as a consultant on ABA accreditation. In fact, it appears that prior to his work for MSL, Mr. Chaplin did not have any experience with the "procedurally laden" accreditation process. Chaplin Dep. at 20-23. Apparently, Mr. Chaplin secured his position not based on his reputation or skill as an attorney, but rather because of his close personal connection with some prominent members of the legal community who, it was thought, might assist MSL in becoming accredited. *fn3"

 The nature of Mr. Chaplin's work, the way in which he referred to himself, the way MSL characterized him, and his prior experience establish that when Mr. Chaplin organized the visiting attorney committee and drafted its report, he was providing business services and not legal counseling. If the accreditation process was "quasi-judicial" in nature, if the procedures were so complex as to require guidance, if Mr. Chaplin (who had no prior experience with the complex procedures) was that guide, and if all that under some circumstances would have created an attorney-client relationship between MSL and Chaplin, that was not the case in this instance. Here, when Mr. Chaplin communicated with MSL about the visiting attorney committee, he did so not as a legal, but as a business advisor. Part of his job was to find "seven prominent New England attorneys" who would lend their names to ...


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